Case 1:15-cv-01921-JLK Document 1 Filed 09/04/15 USDC Colorado Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-1921
ARETHA FRANKLIN,
Plaintiff,
v.
NATIONAL FILM PRESERVE,
LTD. A/K/A THE TELLURIDE FILM FESTIVAL
Defendants.

COMPLAINT FOR EMERGENCY INJUNCTIVE RELIEF

FORTHWITH HEARING REQUESTED

I. GENERAL ALLEGATIONS
1.

This is a lawsuit brought against the Telluride Film Festival (Defendant National

Film Preserve, Ltd.) by the international recording artist Aretha Franklin to stop the unauthorized
public commercial release of a documentary film made of Ms. Franklins 1972 concert
performance at the New Missionary Baptist Church in Los Angeles, California. Ms. Franklin
has never given permission for the use of this footage in any commercial context and has not
authorized the public release of the footage. The footage was taken with the express
understanding that it would not be used commercially without agreement and consent by Ms.
Franklin.

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2.

Ms. Franklin just learned that on Friday, September 4, 2015 the Telluride Film

Festival purports to be showing a full-length film, titled Amazing Grace produced by

California resident Alan Elliott, that consists almost entirely of this concert footage. See Exhibit
1 (Telluride Film Festival Brochure).
3.

Allowing the film to be shown violates Ms. Franklins contractual rights, her

intellectual property rights, her rights to use and control her name and likeness, and represents an
invasion of her privacy. It is also in direct and specific violation of the quitclaim agreement by
which the footage was obtained from the Warner Brothers organization by Mr. Alan Elliott, the
purported producer of Amazing Grace:
4.

The quitclaim deed for the Aretha Franklin gave explicit warning to Mr. Elliott

that any commercial use of the footage would require the permission of Ms. Franklin:
Assignee represents, warrant and agrees that in connection with Assignees use
of the Material, Assignee will obtain all other authorizations, consents and
releases and pay all re-use fees and other compensation required by applicable
collective bargaining or individual contracts or otherwise required by law.
Assignee specifically understands that Assignee will need to obtain authorization
from Aretha Franklin. Without limiting the foregoing, with respect to any music
included in the Material as exhibited, Assignee will obtain all necessary music
synchronization and performance rights (particularly from Ms. Franklin) from the
copyright proprietors of such music and such other persons or entities . . . .
Aretha Franklin Concert Footage (1972) Quitclaim agreement of December 11, 2007 between
Warner Brothers Pictures and Alan Elliott. Exh. 2 (quitclaim agreement).
5.

Ms. Franklin has never given her consent or permission for this footage to be

publicly released. See Exhibit 3 (Declaration of Ms. Franklin).

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6.

The album produced from the concert is the best-selling album of Ms. Franklins

fifty-year musical career. The album went double platinum. Ms. Franklin (along with others)
holds a copyright to this album.
7.

The concert was filmed with Ms. Franklins permission with the understanding

and agreement that it would not be publicly or commercially released without the consent of Ms.
Franklin.
8.

More than 80 percent of the footage of this film is images of Ms. Franklin and

Ms. Franklins performance. See Exhibit 4 (Declaration of Rhonda Jacobs-Sturges of

8/24/2011).
9.

Ms. Franklin previously had to sue Mr. Elliot in 2011 in the Central District of

California to stop him from releasing his film. The lawsuit was resolved after Elliot agreed to
not release the film.
10.

Elliot has now apparently decided to work through the Telluride Film Festival to

publicly release and display the concert footage without Ms. Franklins consent, in violation of
her contractual, federal statutory and common law rights.
11.

Immediate court intervention is required to stop this violation of Ms. Franklins

rights. Ms. Franklin is entitled to, and respectfully prays for an emergency order from the Court
to enjoin the Telluride Film Festival from publicly showing this film as scheduled on the evening
of September 4, 5, and 6 2015.

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II.

THE PARTIES
12.

Aretha Franklin is a legendary vocalist and artist of international renown. She has

won eighteen Grammy Awards and has been named the ninth greatest singer of all time by
Rolling Stone Magazine. She is a citizen of Detroit, Michigan.
13.

Defendant The National Film Preserve, Ltd. (the Telluride Film Festival) is a

Colorado 501(c)(2) non-profit tax-exempt educational corporation, with its principal place of
business in California.
III.

JURISDICTION
14.

There is well in excess of $100,000 in controversy, as the rights to Ms. Franklins

name and likeness are worth millions of dollars.

15.

This court has jurisdiction based on federal question jurisdiction under 28 U.S.C.

1331 because this complaint alleges a violation of the federal anti-bootlegging statute 17
U.S.C. 1101 (1).
16.

The court also has jurisdiction based on diversity of citizenship pursuant to 28

U.S.C. 1332(a)(1).
IV.

ADDITIONAL FACTUAL ALLEGATIONS INCORPORATED BY REFERENCE

TO PRIOR LAWSUIT AND PRIOR MOTION FOR EMERGENCY
INJUNCTIVE RELIEF.
17.

For the sake of brevity, and because other than the involvement of the Telluride

Film Festival, none of the facts have materially changed since 2011 (the last time Ms. Franklin
had to sue to protect her contractual rights, her intellectual property rights and rights to her name
and likeness), Ms. Franklin incorporates by reference the factual recitations from the Complaint

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attached as Exhibit 5 (Verified Complaint in Franklin v. Elliot, 2:11-cv-07225-PA-JEM, Central

District of California).
18.

In that case, after failed negotiations with Ms. Franklin, Mr. Elliot was preparing

to publicly release the film Amazing Grace without Ms. Franklins consent.
19.

The case was resolved after Mr. Elliot professed to having no intent to proceed

with the public commercial release of the film. See Exhibit 6 (Answer of Alan Elliot at 27 -denial to the extent that it alleges that Defendants are proceeding with the release of the
unauthorized film Amazing Grace.)
20.

The unauthorized showing of the 1972 concert footage constitutes an invasion of

privacy, and exploitation and misappropriation of Ms. Franklins name and likeness for
commercial purposes in violation of California and common law.
21.

Ms. Franklin further incorporates the factual allegations and exhibits found in the

Ex Parte application for Preliminary Injunction and Associated Exhibits filed on August 31, 2011
in the matter of Franklin v. Elliott, 2:11-cv-07225-PA-JEM, attached as Exhibit 7.
COUNT ONE:
EMERGENCY RESTRAINING ORDER AND TEMPORARY INJUNCTION
22.

Plaintiff adopts by reference the prior allegations.

23.

Plaintiff seeks to enjoin the Defendant from infringing upon her right of publicity

by proceeding with the release of the unauthorized film Amazing Grace.

24.

Indeed the usual function of a preliminary injunction is to preserve the status quo

ante litem pending a determination of the action on the merits.

25.

As is demonstrated in the accompanying brief, Ms. Franklin has a high probability

of success and will be irreparably injured if an injunction is not released.

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26.

The raw footage has been locked away in the vaults of Warner Brother studios for

nearly forty years. There is no urgency in its immediate release. Conversely, Ms. Franklin will
be irreparably injured if the film is released.
27.

In this instance, the status quo is the last uncontested status which preceded the

pending controversy. Id. Plaintiff therefore seeks to enjoin Defendant from releasing any film,
documentary, movie or concert footage which involves Plaintiffs 1972 performance at the New
Missionary Baptist Church in Los Angeles California.
28.

Plaintiff can and will demonstrate the likelihood that she will prevail on her claim

for violation of rights of publicity against Defendant. Plaintiff also faces irreparable harm unless
the Defendant is immediately restrained from engaging in the infringing conduct. Additionally,
serious questions are raised and the balance of hardships tips in Plaintiffs favor. Plaintiff
therefore respectfully requests that her Motion for Preliminary Injunction be granted.
WHEREFORE, Ms. Franklin requests this Court grant a temporary and permanent
restraining order barring the release of this film.
COUNT TWO: VIOLATION OF COMMON RIGHT TO PUBLICITY
(STATE LAW COUNT)
29.

Plaintiff adopts by reference all prior allegations.

30.

Californias law regarding the Right to Publicity is governed by its common law

and statutory laws which protect the use of a persons name, voice ... or likeness Cal. Civ.
Code 3344(a). Plaintiff can effectively show an exceedingly high probability of success on her
Right of Publicity claim.
31.

California common law recognizes this right of publicity in a persons name,

likeness and identity. Colorado similarly recognizes the rights of publicity in a persons name,

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likeness and identity, and the misappropriation of such is a tort. Joe Dickerson & Associates v.
Dittmar, 34 P.3d 995 (Colo. 2001).
32.

There is no question that the Defendant, by publicly displaying this film, is using

the Plaintiffs identity or likeness.

33.

Not only is the Plaintiffs identity used in the film which is being released without

authorization, but it was also used in promotional materials as well.

34.

Equally evident is the fact that the Defendant film festival will continue to be

advantaged from the appropriation, or more accurately, the misappropriation of the Defendants
name or likeness.
35.

Additionally, the advantages that the Defendant has gained and continues to gain

exceed those strictly economic in nature and include the commercial advantages of enhancing
the defendants professional repute and industry clout which in turn leads to further commercial
opportunities and reputational gain for the film festival.
36.

For these reasons, the defendant is benefiting from the misappropriation of the

Plaintiffs name and likeness in directly economic way, indirectly economic ways as well as in
ways not limited to economics at all.
37.

Defendant never obtained the Plaintiffs consent to release the movie.

38.

Use of this footage without Ms. Franklins consent would violate the Plaintiffs

rights of publicity.
WHEREFORE, Ms. Franklin requests this Court grant her the injunctive relief prayed for
above together with just and equitable damages in excess of $75,000 including her attorney fees

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and costs. Plaintiff also requests this Court award punitive and exemplary damages designed to
deter similar future misconduct by others.
COUNT THREE: ANTI-BOOTLEGGING CLAIM
(FEDERAL QUESTION JURISDICTION)
39.

Ms. Franklin adopts the prior paragraphs.

40.

17 U.S.C. Sec. 11011(l) provides in pertinent part:

(a) Unauthorized Acts.--Anyone who, without the consent of the performer or

performers involved
(1) fixes the sounds or sounds and images of a live musical performance in a copy
or phonorecord, or reproduces copies or phonorecords of such a performance
from an unauthorized fixation,
(2) transmits or otherwise communicates to the public the sounds or sounds and
images of a live musical performance, or
(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent,
or traffics in any copy or phono record fixed as described in paragraph (1),
regardless of whether the fixations occurred in the United States, shall be subject
to the remedies provided in sections 502 through 505, to the same extent as an
infringer of copyright .
41.

Ms. Franklin is the performer of the video in question.

42.

Defendant intends to release or distribute large portions of the content of the

video without her consent.

43.

The video in question includes both sounds and images.

44.

Defendant wishes to release the film and video of Plaintiffs performance

commercially to the public at large.

45.

Defendant is therefore in violation of the foregoing statute.

46.

Ms. Franklin will be affirmatively harmed if this video is released.

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47.

Ms. Franklin has no other recourse other than an application for relief to this

Court.
WHEREFORE, Ms. Franklin requests this Court grant her the injunctive relief prayed for
above together with just and equitable damages in excess of $75,000 including her attorney fees
and costs. Plaintiff also requests this Court award punitive and exemplary damages designed to
deter similar future misconduct by others.
COUNT FOUR: VIOLATION OF RIGHT OF PUBLICITY
(STATE LAW COUNT)
48.

Plaintiff adopts by reference the prior allegations.

49.

Several courts have held that a celebritys property interest in his or her name and

likeness is unique, and cannot reasonably be compensated by money damages.

50.

Thus Defendants unauthorized use of Plaintiffs name, voice and likeness is per

se causing irreparable harm.

51.

Additionally, Defendants disregard to Plaintiffs rights of publicity and insistence

on releasing a movie without authorization undermine the value of a celebritys property interest
in his or her name or likeness.
52.

The market for the publicity rights would collapse and the rights themselves

would be rendered valueless without the ability of the law to adequately protect them through
injunctions.
53.

Punishing violations of publicity rights after the fact through damages cannot

effectively enforce the law in this respect to the same degree that issuing an injunction can and
often does.

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54.

By releasing Amazing Grace without authorization and using it for commercial

purposes, the Defendant film festival will get publicity for itself, in a value that exceeds
$75,000.00.
55.

WHEREFORE, Ms. Franklin requests this Court grant her the injunctive relief

prayed for above together with just and equitable damages in excess of $75,000 including her
attorney fees and costs. Plaintiff also requests this Court award punitive and exemplary damages
designed to deter similar future misconduct by others.

Dated: September 4, 2015

Respectfully submitted,

s/ N. Reid Neureiter
N. Reid Neureiter
Wheeler Trigg ODonnell LLP
370 Seventeenth Street, Suite 4500
Denver, CO 80202-5647
Telephone: 303.244.1800
Facsimile: 303.244.1879
Email: neureiter@wtotrial.com
Attorneys for Plaintiff,
Aretha Franklin

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